Copyrighting Creativity: What Rights Do Artists Really Have?

artists: know your rights

“I’ve definitely needed an art lawyer in the past, but couldn’t afford it and was always dependent on who the scheme-y person I was working with and how creatively they tried to abuse my rights,” says Bushwick-based artist Regina Elliott. She’s in her late twenties, hardworking, and has had a few gallery shows over the past decade.

For many artists in Elliott’s position, the pitfalls of the art world are great and the cards appear to be stacked unevenly: The galleries, museums, and buyers have the power and the resources to call the shots and the artists have to quietly sign on the dotted line.

But what rights do the artists actually have? Recently, we asked art lawyer Elisabeth Conroy of Edward W. Hayes, P.C. some important questions to find out.

“A lot of our client base is in Brooklyn,” explains Conroy when we meet at the firm’s offices on the thirty-first floor of a Manhattan skyscraper. And “forty to fifty percent” of those clients, she estimates, are creative types, like artists, hat makers, photographers, musicians, fashion designers, and gallery owners.

Conroy’s path to becoming a lawyer wasn’t completely straightforward, but it seems to be her calling. As an art history major in college, Conroy also gained industry experience by working at art galleries. “I knew I wanted to go to graduate school for something art related,” she tells me, “but I knew I didn’t want to go into academia or be stuck in a small museum room doing research all the time.”

After graduation, Conroy went into the Art Business program at Sotheby’s Institute of Art, where she happened to take an art law class that changed the course of her life. “I thought that was the perfect marriage of what I wanted to do,” she says. From the Sotheby’s Institute, Conroy went on to law school—where she excelled and left her mark by founding the Art Law Society as a student.

Now, sitting in a midtown office surrounded by paintings and drawings, she’s found her niche between art and business. “I like solving problems,” she says. “I really like being thrown at something new every day and having to figure a way out of it.” And, she adds, it’s really fun to help people.

I made a work of art. Does it have an instant copyright?
Yes, a work of art is automatically protected by copyright when it is created or “fixed” in a tangible medium of expression. The work has to be original (which means that it was not copied) and has to have a minimal degree of creativity.

Registration with the Copyright Office is not required, but there are benefits to registering—like the ability to later file a lawsuit in federal court for copyright infringement. Plus, from the day that your copyright is registered, you have the exclusive right to make copies of the work, prepare derivative works, sell or distribute copies, and display work publicly.

I think a copyright is the most valuable asset an artist can have. Even after selling the work, the artist retains the copyright. The buyer only obtains the physical artwork. And, copyright can only be transferred by a signed writing and that is extremely rare.

With many young artists and musicians, I have seen them wait to apply for copyright registration and then, before they do, something goes wrong. Not only is it much harder to go to court without a copyright registration, but the court can’t award you damages and/or attorney’s fees if you win.

How can an I apply for a copyright?
You can apply online, and all you need to do is fill out an application form, submit a non-refundable filing fee (which ranges from $35 to $85), and provide a nonreturnable “deposit”—which is a copy of your work that will be registered with the Copyright Office.

I think someone copied my work. What should I do?
First, you have to do something called “due diligence”—which is gathering all of the essential facts. Find out who appropriated the work, how it was appropriated, and then where that other artist or corporation is located.

Then, reach out to a lawyer. The lawyer can review what you have and tell you if you have a case. Before going to court, however, the lawyer will send a letter to the person/company that copied your work to negotiate with them or, at the very least, to prevent them from further using that work.

What if someone bought my painting and set it on fire in their own performance piece?
In some cases, you might be able to file a lawsuit for the destruction of your artwork. Since 1990, artists have had what are called “moral rights” to their work under federal law. These rights include the right to claim or disclaim authorship in a work; limited rights to prevent the distortion, mutilation, or modification of a work; and in some circumstances, the right to prevent destruction of a work that in incorporated into a building.

Also, there are federal statutes that protect visual art from intentional destruction—like purposely setting it on fire in a performance piece—if that artwork is of “recognized stature” (which means it is viewed as “meritorious” by art experts and other members of the art community).

I’m creating a controversial piece about religion and elephant dung. Do I have any First Amendment protections?
Yes, but there are limitations. For visual art, the setting/location of the art often determines the protections you get. For example, when an exhibit is in a private space, protections are great. But if the work is in a public space—and it includes something passersby would find controversial—then that work is at risk of being removed or relocated to a less prominent area.

In terms of film, filmmakers are afforded extra protections from censorship because the films are generally shown in closed settings where the audience chooses to be there, rather than in broad view of passersby who might not be choosing to see the work.

My gallery valued my painting at $7,000. But now I’m going to court over the painting. Will the court value it differently?
Not necessarily. In court, the side that is attempting to prove the value of the work will have an expert(s) testify about the value of the piece and why it was assigned that value. The expert has to be court-approved.

If someone argues in court that your painting is really only worth $2,000, the judge will hear out both sides’ experts and then decide which testimony was more credible—and the judge has the final word.

I was commissioned to do a mural on the side of a bodega that took several weeks. It’s done now, but the building owner refuses to pay me like we agreed. What should I do?
You need to file a lawsuit against the building owner for the price that he agreed to pay you for the commission. If you have a written contract, that will be great. If you have a bunch of e-mail exchanges where you’re negotiating about the work and the price, those can count as a contract.

Do you have any negotiation tips for artists?
Hire an attorney—especially if you’re going to be signing a contract. You don’t want to accidentally bind yourself to contract terms that you might regret later.

Also, some attorneys will represent artists in exchange for their artwork or will work with you to make the legal fees affordable, like figuring out a reasonable payment plan.

And, before you agree to any sale or display of your work, you should focus on registering the copyright first.

A gallery wants to represent me and take 60 percent of all my works sold. This seems like a lot. Is it?
Gallery commissions can range from 25 percent to 60 percent with commissions averaging between 33 percent and 50 percent. The contract the artist signs with the gallery should assign a specific percentage to the commission and you should try to make sure that the commission is reviewed on a periodic basis.

I just saw my sculpture inside Kimmy Schmidt’s apartment on The Unbreakable Kimmy Schmidt. The guy who bought it from me didn’t have my permission to use it as a set prop. What do I do?
If the sculpture is used on a sitcom set, and the actual work is being filmed and photographed, a derivative work of that original piece is actually being created—in this case, a sitcom. Since the artist typically owns the underlying copyright, you could file a claim for copyright infringement against the owner of the piece since that owner only owns the right to display that work, not the right to make a derivative work.

If the owner wants to use the sculpture on Kimmy Schmidt, he should get a license from the you ahead of time to do it.

A company using a photo I had on Flickr in an ad campaign without my permission. Can they do that?
Yes, because when you sign up to use Flickr, you are agreeing to give them a license to use your content. It’s in the “Terms of Service” section, and you’ve checked a box that you read and agreed to the terms. Flickr has this license to use your content until you remove the image from Flickr. Their license is then terminated.

I use Google image search and public Instagram accounts to get free images. This is legal, right?
No. Once an image is created, it has copyright protection, even if it’s not marked with a © symbol or captioned to assert a copyright. You should either contact the owner of that image to obtain permission to use it or not use it at all in order to protect yourself from copyright infringement.

Okay, but someone is using photos from my Instagram feed in their artwork and didn’t get my permission.
There could be copyright infringement here, but this artwork could also be protected under the fair use doctrine. With the fair use doctrine—without going into too much legal details—the court will ask if the new work generally alters the original with a new expression, meaning or message? In other words, is the new work transformative? It’s context-based.

In terms of the Richard Prince works with the Instagram images, that question is still up in the air: Did Mr. Prince infringe or did he alter the images in a way that gave them a new expression in meaning?

An artist in China copied my work. I’m an American artist. What can I do?
The US has copyright relationships with most countries throughout the world so these countries honor each others citizens’ copyrights. American artists receive the same copyright protection in China (or any country) as that country gives to their own artists.

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